Republic Steel Corp. v. Costle

The United States Congress has been wrestling with the problem of pollution of the ambient air since 1955.SeeAct of July 14, 1955, Pub.L. No.84-159,69 Stat. 622. The original act has now been amended many times. It now is cited as the Clean Air Act and has been codified in 42 U.S.C. § 1857-1857l(1970 Supp. V 1975).[2]

[2] The Clean Air Act was originally enacted in 1963, Pub.L. No.88-206,77 Stat. 392. It was amended in relatively minor ways three times during the following six years. Pub.L. No.89-272,79 Stat. 992(1965); Pub.L. No.89-675,80 Stat. 954(1966); Pub.L.90-148,81 Stat. 485(1967).

The Act's present form, however, is derived from amendments adopted in 1970 and subsequently. Clean Air Act Amendments of 1970, Pub.L. No.91-604,84 Stat. 1676as amended,Pub.L. No.92-157,85 Stat. 464(1971); Pub.L. No.93-319,88 Stat. 246(1974); Pub.L. No.95-95,91 Stat. 685(1977).

§ 50.4 National primary ambient air-quality standards forsulfur oxides (sulfur dioxide).

The national primary ambient air quality standards for sulfur oxides measured as sulfur dioxide by the reference method described in Appendix A to this part, or by an equivalent method, are:

(a) 80 micrograms per cubic meter (0.03 p.p.m.) — annual arithmetic mean.

(b) 365 micrograms per cubic meter (0.14 p.p.m.) — Maximum 24-hour concentration not to be exceeded more than once per year.

§ 50.5 National secondary ambient air quality standards forsulfur oxides (sulfur dioxide).

The national secondary ambient air quality standard for sulfur oxide measured as sulfur dioxide by the reference method described in Appendix A to this part, or by any equivalent method is 1,300 micrograms per cubic meter (0.5 p.p.m.) maximum 3-hour concentration not to be exceeded more than once per year.

Ambient Air Standards (Primary Secondary),40 C.F.R. §§ 50.4,50.5(1976) (Footnote omitted).

The federal Clean Air Act program which produced these standards is based primarily upon the adverse effect which air pollution has upon human life and health.

Acute episodes of high pollution have clearly resulted in mortality and morbidity. Often the effects of high pollutant concentrations in these episodes have been combined with other environmental features such as low temperatures or epidemic diseases (influenza) which may in themselves have serious or fatal consequences. This has sometimes made it difficult to determine to what extent pollution and temperature extremes are responsible for the effects. Nevertheless, there is now no longer any doubt that high levels of pollution sustained for periods of days can kill. Those aged 45 and over with chronic diseases, particularly of the lungs or heart, seem to be predominantly affected. In addition to these acute episodes, pollutants can attain daily levels which have been shown to have serious consequences to city dwellers.

There is a large and increasing body of evidence that significant health effects are produced by long-term exposures to air pollutants. Acute respiratory infections in children, chronic respiratory diseases in adults, and decreased levels of ventilatory lung function in both children and adults have been found to be related to concentrations of SO[2] and particulates, after apparently sufficient allowance has been made for such confounding variable as smoking and socioeconomic circumstances.

Rall,Review of the Health Effects of SulfurOxides,8 Env'tal Health Perspectives 97, 99 (1974).

The beneficial health impact of the ambient standards has been recognized by the American Medical Association and the American Lung Association in testimony before the subcommittee and in resolutions urging no delays or relaxation in meeting these standards. Even more graphically, two recent studies show that a significant decrease in the number of deaths can result from improving air quality to the level of the national primary ambient air quality standards.

Thus, there can be no question that the national ambient air quality standards are necessary and beneficial for protection of the healthy and reduction of risk to the susceptible and chronically ill. However, it is also clear that a combination of ambient standards with a policy for prevention of significant deterioration of air quality is necessary to provide for maximum feasible protection of the public health. Since 1971 when the national ambient air quality standards were set, new and disturbing information has come to light showing that the public's health is being harmed to some extent, perhaps seriously, even at levels below the national standards. The margins of safety, supposedly insured by the standards, seem to have vanished in the face of new data.

The inadequacies of the standards are substantial both with regard to the pollutants which are regulated and with respect to their failure to regulate others. A summary of the shortcomings and limitations of the existing national primary ambient air quality standards demonstrates this.

Moreover, the adverse health effects to which EPA refers are not limited to minor problems such as eye irritation or occasional cough. According to EPA, independent studies "indicated that deaths are occurring at pollution levels not far above the primary [24-hour SO[2]] standard".

Newly considered circumstances and studies indicate that the required margin of safety is probably nonexistent, not merely small, under some circumstances or with respect to some pollutants.

"Except when notice or hearing is required by statute, this subsection does not apply —

When the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest."

The States are now preparing revisions to their State implementation plans (SIPs) as required by sections 110(a)(2)(I) and 172 of the Act. This enterprise, which must be completed by January 1, 1979, requires that the States have immediate guidance as to the attainment status of the area designated under section 107(d). Congress has acknowledged this by imposing a tight schedule on the designation process and requiring EPA to promulgate the list within 180 days of the enactment of the amendments. Under these circumstances it would be impracticable and contrary to the public interest to ignore the statutory schedule and postpone publishing these regulations until notice and comment can be effectuated. For this good cause, the Administrator has made these designations immediately effective.

The Agency recognized, however, the importance of public involvement in the designation process. It is therefore, soliciting public comments on this rule by May 2, 1978. Comments received will be considered carefully and revisions to the designations will be made where appropriate. Rec.Doc. No. 1, App. at 6.

Turning first to whether the agency action here was justified under the narrower (b)(B) standard, we find that such justification existed under the impracticability standard embodied in the statutory language of the first good cause exception. The legislative history of this impracticability standard reveals that Congress intended this exemption to operate when the regular course of rulemaking procedure would interfere with the agency's ability to perform its functions within the time constraints imposed by Congress. Early versions of this provision allowed public participation to be dropped where it was "impracticable because of unavoidable lack of time or other emergency." S. Doc. No. 248, 79th Cong., 2d Sess. 140, 148, 157 (1946). The exception was broadened by the elimination of this qualifying language. The Senate and House Reports interpreted "impracticable" in this broader formulation as a situation "in which the due and required execution of the agency functions wouldPage 805be prevented by its undertaking public rule-making proceedings."Id.at 200, 258.²

The RAM model is a general formula which can be applied to many individual sources of pollution to derive specific estimates of SO[2] emission rates for each. It employs a wider, more complete and more accurate data base than any prior model yet employed in devising a sulfur dioxide control strategy for a state or county. The crucial data with which the RAM model starts are the design capacity figure, plus the fuel sulfur content, from which is computed the SO[2] emission rate for each of the heating or power plants sought to be controlled. Thus at the outset the RAM model starts with ascertainable specific figures for each source where disputes can be resolved by inspection of the equipment or fuel concerned. Many of the additional components such as stack height, wind direction, physical relationship of sources to each other, and topography of the area are similarly ascertainable as matters of fact. With the enormous financial stakes involved in this litigation, every effort to avoid disputes about the accuracy of the data base should be made. This record shows that United States EPA's design of the RAM model was brought about at least in largePage 806part by Ohio industry's requests for greater specificity and hence lower costs of compliance with National Air Quality Standards.

While there may yet be developed (and hopefully will be) a better method of establishing a control strategy for sulfur dioxide emissions than the RAM model, no one has yet come forward with such. Nor do petitioners point to any such.

This is not to ignore that petitioners do cite Enviroplan's claims of a superior model termed Air Pollution Evaluation System. This record shows, however, that United States EPA asked for the Enviroplan model and was refused, and is now refused the operative details of that model on the grounds of proprietary interest. While such withholding may be both defensible as a matter of law and understandable as a matter of economics, this court cannot consider Enviroplan's model as available technology until and unless it is fully disclosed and evaluated by United States EPA — the agency charged by Congress with making these decisions.

We recognize that this record does not present positive proofs of the accuracy of RAM's predictions. Thus far technology has not developed foolproof methods for validating predictions concerning pollution of the ambient air absent years of collection of monitoring data with far more monitors and far more personnel than have thus far been available.